Embattled public protector Busisiwe Mkhwebane has contended that the Constitutional Court violated her rights and breached the constitution by setting aside her finding that President Cyril Ramaphosa misled parliament and breached the executive code over the R500,000 Bosasa donation to his ANC presidential campaign.
Mkhwebane has approached the apex court to have it rescind its July 1 ruling in which it dismissed her bid to overturn the invalidation of her report into the CR17 campaign, which found that Ramaphosa misled the legislature when asked about the Bosasa donation in 2018.
The ConCourt had found that Mkhwebane had changed the wording of the executive code of ethics to include “deliberate and inadvertent” in a bid to reach a finding that Ramaphosa had wilfully misled parliament.
The court further said Mkhwebane had evaluated Ramaphosa’s conduct “against a standard she created” instead of measuring it against the code.
In her court papers, Mkhwebane says the court erroneously used the older code published by former president Thabo Mbeki in 2000 in assessing her probe while she had used the amended 2007 code, which she says was also used by her predecessor, Thuli Madonsela, in probing members of the executive.
While the 2000 code prohibited members of the executive from “wilfully” misleading parliament, the amended 2007 version included “deliberately and inadvertently” in its prohibition.
Mkhwebane points out that Madonsela used the 2007 version in probing the Nkandla saga, among other investigations, which the apex court accepted, adding that this had created precedence.
She says the ConCourt’s “mix-up of the codes” and its eventual finding that she had committed “a material error” of law had serious adverse implications for her as it violated her constitutional right to dignity and reputation as the head of a chapter nine institution, as a lawyer and as a person.
“Secondly, the alleged error will result in much confusion and/or unnecessary disruption of the work of the public protector. Thirdly, it has already been proposed by at least one court that the issues related to the confusion between the different codes should form the subject of a possible complaint to the Legal Practice Council against me,” she said.
She says it is in the interest of justice that any confusion associated with the apparent error be “cleared once and for all, one way or the other, for better or worse”.
“This court’s pronouncements make me and the office of the public protector particularly vulnerable to unfounded political attacks aimed at undermining the constitutional functions of the office of the public protector,” Mkhwebane said.
The apex court had questioned why Mkhwebane had accepted in her own report that Ramaphosa had not wilfully misled parliament and that he had responded “in good faith” when he said the Bosasa donation had been a payment for services rendered by his son, only to find him guilty of misleading parliament and his conduct “inconsistent with his office as a member of cabinet”.
Mkhwebane still did not agree with the setting aside of some of her findings in her report as well as the declaration by the ConCourt that she had no powers to investigate Ramaphosa. She said she would confine her rescission application to the Bosasa and ethics code saga as she did not want to use the application “as the backdoor appeal” against her invalidated findings.
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